Citation Nr: 1313079 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-15 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from April 1954 to November 1957. These matters come before the Board of Veterans' Appeals (BVA or Board) from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran appeared before the undersigned Veterans Law Judge in June 2012 and delivered sworn testimony via video conference hearing in Lebanon, Pennsylvania. A transcript of that hearing is of record. This case was held open for 60 days in order to allow the Veteran adequate opportunity to submit additional information. In November 2012 the Board referred this case for medical expert opinion with the Veterans Health Administration (VHA), which was received by the Board in January 2013. The Board issued a copy of the VHA opinion to the Veteran in January 2013 and informed him that he had 60 days from the date of the notice letter in which to review the medical opinion and submit additional evidence or argument. See 38 C.F.R. § 20.903 (2012). The Veteran has not submitted any such additional evidence or argument. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There has been no demonstration by competent clinical evidence, or credible lay evidence, that left ear or right ear hearing loss was present in service, that left ear or right ear hearing loss disability was demonstrated to a compensable degree within a year of discharge from service, or that there is a nexus or link between left ear or right ear hearing loss disability and the Veteran's active service. 2. Tinnitus was not shown in service or within a year of discharge from service, and neither competent medical evidence, nor competent and credible lay evidence, establishes a nexus or link between tinnitus and the Veteran's active military service. CONCLUSIONS OF LAW 1. Left ear or right ear hearing loss disability was not incurred in, or aggravated by, active service, nor may they be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in February 2008, April 2008, and December 2011 the Veteran was informed of the evidence and information necessary to substantiate the claims, the information required of the Veteran to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the February 2008 letter the Veteran received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudication of the claims. Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA medical records. As noted, in January 2013 a medical expert opinion from the VHA was obtained. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is more than adequate. The January 2013 VHA opinion considered the pertinent evidence of record, and included a specific reference to the Veteran's service treatment records. Supporting rationale was provided for the opinion concerning the Veteran's left ear and right ear hearing loss claims. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the January 2013 VA examiner did, as far as providing an opinion of etiology for the Veteran's tinnitus, state that she could not "provide a medical opinion regarding the Veteran's tinnitus without resorting to speculation." As, however, the January 2013 VHA examiner explained the basis for being unable to render the requested opinion, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the tinnitus issue has been met. 38 C.F.R. § 3.159(c)(4); Jones v. Shinseki, 23 Vet. App. 382 (2010). During the June 2012 Board hearing, to assist the Veteran, the undersigned reviewed the medical evidence of record with the Veteran and informed the Veteran of the importance, in light of the unfavorable VA opinion of record, of trying to obtain an opinion from a private audiologist linking his hearing loss and tinnitus to service. The undersigned also informed the Veteran that the record would be held open for 60 days in an effort to give the Veteran additional time to submit evidence in support of his appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Laws and regulations The Veteran's DD Form 214 reflects that his military occupational was Apprentice Air Policemen. The Veteran asserts (as noted in a March 2008 statement) that he has hearing loss and tinnitus as a result of exposure to jet engines and aircraft during service. He states that he served on a flight line during service for hours at a time, without ear protection. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In regard to claims specific to service connection for hearing loss, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. As such, service connection for sensorineural hearing loss (as an organic diseases of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. Moreover, the concept of continuity of symptomatology as clarified by Walker, Supra., is applicable in this case. As noted by the February 2012 VA examiner, the Veteran's hearing loss is sensorineural in nature. The Board observes that a Veteran's "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456 (1992). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Audiometric results were reported pursuant to the standards set by the American Standards Association (ASA) during the Veteran's service. Standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI) since November 1, 1967, however. The Veteran's March 1954 service enlistment examination noted that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15; there was no audiological testing. The Veteran's service treatment records are negative for any recorded evidence of complaints, treatment, or diagnoses of tinnitus or of any hearing loss. The Veteran's November 1957 service discharge examination noted that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15. The Veteran's PULHES profile "H" reflected a 1. Audiometric findings (American Standards Associates (ASA) units as converted to International Standards Organization (ISO) units) were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 10 5 LEFT 15 5 10 5 0 While the Veteran indicated that he had had ear, nose, or throat trouble on the corresponding November 1957 Medical History report, he noted no ear or hearing problems and noted only that he had undergone a tonsil operation. A May 2007 VA progress note indicated that the Veteran had unimpaired hearing. A July 2008 VA consult note indicates that the Veteran reported progressive hearing loss. The Veteran related a history of noise exposure that included his military service, work at a foundry, and hunting. The reported audiometric findings demonstrated right ear and left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In his May 2009 substantive appeal the Veteran essentially reiterated that he had been exposed to aircraft noise on a flight line and that he, as a security policemen, did not wear hearing protection and had been only 40 feet from the jet planes. As for his post-service hunting, he stated that he had hunted with a bow and arrow. The Veteran was afforded a VA examination in February 2012. The Veteran reported a history of hearing loss and tinnitus, noting that he worked in an Air Police unit for several years during service. Following separation, he was a welder for three years, worked in a foundry for five years, and repaired small equipment for more than 20 years. It was further noted that the Veteran occasionally hunted with firearms for more than 30 years without hearing protection. The reported audiometric findings demonstrated right ear and left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Tinnitus was also diagnosed. The examiner opined that it was less likely than not that current hearing loss and tinnitus were related to service. It was noted that an audiogram completed on separation in November 1957 reveled normal hearing from 500-4000 Hz; no other rationale for the opinion was provided. At his June 2012 Board hearing the Veteran stated that he had had hearing loss and tinnitus problems since service. The Veteran essentially requested that the record be held open for 60 days in an effort to allow him to obtain additional medical evidence. The January 2013 VHA examiner indicated that the Veteran's claims file had been reviewed and noted the Veteran's history of service and post-service noise exposure. The examiner concluded that it was not likely that the Veteran's hearing loss was related to the Veteran's military service. The examiner also stated that the Veteran's tinnitus was related to his hearing loss but could not otherwise provide an opinion of etiology regarding the Veteran's tinnitus without resorting to speculation. Neither left ear or right ear hearing loss, nor a medical finding of a chronic clinically significant change in hearing ability in the left ear or right ear was demonstrated during the Veteran's active service. Moreover, left ear and right ear hearing loss "disability" for VA purposes was not demonstrated to a compensable degree within the first year of discharge from such service, and was not shown until July 2008, many years following service. Significantly, there is no competent medical opinion linking left ear or right ear hearing loss disability to service, and the January 2013 VHA examiner essentially indicated that the Veteran's left ear and right ear hearing loss was not related to his military service. As for the probative value of the January 2013 VHA opinion, the Board observes that the January 2013 VHA examiner reviewed the Veteran's claims file and noted the Veteran's assertions concerning his hearing loss and tinnitus claims. The January 2013 VHA examiner detailed the history of the Veteran's noise exposure (during and after service) and specifically referenced the Veteran's service separation examination. In particular, the January 2013 VHA examiner stated as follows: Although history of noise exposure can cause noise induced hearing loss and damage to the cochlea the only way to determine auditory sensitivity is the ability to detect weak pure tones which Veteran was able to do at time of discharge. The Board finds that the January 2013 VA examiner's opinion is probative and persuasive because it took into consideration the Veteran's medical records and history, his complaints, and provided a comprehensive and detailed supporting rationale, including citation to medical literature regarding the Veteran's particular circumstances. The Veteran is competent to report having sustained acoustic trauma during his periods of service, and as such is consistent with the circumstances of his service, such assertions are deemed to be credible. The Board notes that the Veteran is competent to provide statements concerning factual matters of which he has first hand knowledge (i.e., experiencing or observing noise exposure and hearing loss problems during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran lacks the medical training and expertise to opine that any current left ear or right ear hearing loss is etiologically related to acoustic trauma in service. The January 2013 VHA examiner's opinion, which was rendered by a trained medical professional, also far outweighs any lay opinion provided by the Veteran on this medically complex matter. King v. Shinseki, 700 F. 3d 1339 (Fed. Cir 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. While the Veteran is competent to report that he has had left ear and right ear hearing loss since service, the Board finds that the Veteran's statements as to continuity of symptomatology since service are less than credible (See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). In this regard, the Board notes that the Veteran did not indicate that he had any hearing loss or ear problems at the time of his separation from service or until many years following service. In view of the medical evidence to the contrary, the Board does not find that the Veteran's lay statements are sufficient to establish continuity of symptomatology of left ear or right ear hearing loss. In sum, service connection for left ear and right ear hearing loss is not warranted. Concerning the issue of service connection for tinnitus, the Board reiterates that the weight of the evidence is against the Veteran's claim. While the VHA examiner acknowledged the Veteran's complaints of Tinnitus since service separation, the examiner specified that "[o]nly seldom does noise cause a permanent tinnitus without causing hearing loss (The Noise Manual 5th edition p.125). The Veteran's sensitivity was within normal limits at time of discharge." The VHA examiner further commented that "[s]tating that tinnitus is military related would be solely based on Veteran's complaint." The Board acknowledges that the Veteran is competent to report that he experiences ringing in his ears, which is the clinical feature of tinnitus. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board notes, however, that the Veteran's service records do not reference any complaint concerning ringing in the ears. In considering the Veteran's tinnitus claim, to the extent such tinnitus may be associated with the Veteran's sensorineural hearing loss, it is arguably an organic disorder of the nervous system under 38 C.F.R. § 3.309(a). Assuming for the sake of argument that this is the case, the Board observes that while the Veteran may be competent to report that he has had ringing in his ears since service, the Board finds that the Veteran's statements as to continuity of tinnitus symptomatology since service lack credibility (See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). In this regard, the Board notes that the Veteran never indicated that he had any ear problems on the medical history report portion of his service separation examination. Thus, to the extent that tinnitus could be associated as sensorineural hearing loss and can be considered as a chronic disease, the Board does not find that the Veteran's lay statements are sufficient to establish continuity of symptomatology. While the Veteran has submitted medical articles in support of his claims, the articles are not specific to the Veteran and do not relate the Veteran's hearing loss or tinnitus to his military service. In short, the medical literature submitted by the Veteran does not contain the specificity to constitute competent evidence of the claimed medical nexus. Sacks v. West, 11 Vet. App. 314 (1998). In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for left ear and right ear hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs